Common use of Appointment of Stockholders’ Representative Clause in Contracts

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.

Appointment of Stockholders’ Representative. For purposes In the event the Company Stockholder Approval is obtained, effective upon the Company Stockholder Approval and without any further action by the Stockholders, the Company and, by their approval and adoption of this Agreement, the Stockholders hereby appoint MC Venture Partners V, L.P. as agent and the attorney-in-fact for each Stockholder, with full authority to act, for and on behalf of any or all of the Stockholders (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate full power of substitution in the judgment premises), in connection with such matters as are reasonably necessary for the consummation of the Stockholders’ Representative transactions contemplated hereby, including, without limitation, (a) to receive notice of, to defend and to compromise on their behalf with Parent any claims asserted under this Agreement or the Escrow Agreement, (b) to execute and deliver on behalf of the holders of Contingent Value Rights Stockholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement (as it relates including notices and joint instructions to Contingent Value Rightsthe Escrow Agent under the Escrow Agreement), (c) and the CVR Agreement (including engaging to engage counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given representatives in connection with the foregoingforegoing matters and (d) to take such further actions, in each case including coordinating and administering pre-Closing and post-Closing matters related to the extent permitted rights and obligations of the Stockholders under this Agreement or the Escrow Agreement, to send and receive notices on behalf of the Stockholders under this Agreement and to provide any consents on behalf of the Stockholders as are authorized in or contemplated by this Agreement or the CVR Escrow Agreement (the above named representative, as well as any subsequent representative of the Stockholders as the Stockholders who hold at least a majority of the Stockholders’ interest in the Escrow Fund may appoint from time to time to replace MC Venture Partners V, L.P., being referred to herein as the “Stockholders’ Representative”). The Stockholders’ Representative shall have full power and authority to represent all of the Stockholders and their successors with respect to all matters arising under this Agreement), all actions taken by the Stockholders’ Representative is hereby appointedhereunder and thereunder shall be binding upon all of the Stockholders and their successors as if expressly confirmed and ratified in writing by each of them, authorized and empowered no Stockholder shall have the right to object, dissent, protest or otherwise contest any such actions. The Stockholders’ Representative shall not be liable to any Stockholder, Parent, the Surviving Corporation or their respective Affiliates or any other Person, and (on a several basis) each Stockholder shall indemnify and hold the Stockholders’ Representative harmless from, any loss, liability or expense incurred by the Stockholders’ Representative, with respect to any action taken or omitted to be taken by the exclusive representativeStockholders’ Representative in his role as Stockholders’ Representative under or in connection with this Agreement (all of which actions and omissions shall be legally binding upon each Stockholder), agent unless such action or omission constitutes fraud, gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Representative. Parent, Merger Co. and the Surviving Corporation shall be entitled to rely on such appointment and treat such Stockholders’ Representative as the duly appointed attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make each Stockholder for all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions purposes of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing Each Stockholder who executes this Agreement, the Stockholders’ Representative accepts by such appointmentexecution and without any further action, authority confirms such appointment and powerauthority. Without limiting the generality All fees and expenses of the foregoing, the Stockholders’ Representative shall have be paid by the power Principal Stockholders. Section 8.21. Section 16. Assuming that the Company delivers to take any Parent the Section 16 Information in a timely fashion, the Board of Directors of Parent, or a committee of two or more Non-Employee Directors (as such term is defined for purposes of Rule 16b-3 under the Exchange Act) of the following actions on behalf Board of Directors of Parent, shall adopt resolutions prior to the consummation of the holders Merger providing that the receipt by the Company Insiders of Parent Common Shares in exchange for capital stock of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates Company pursuant to the Contingent Value Rightstransactions contemplated hereby, and to the extent such securities are listed in the Section 16 Information, are intended to be exempt from liability pursuant to Section 16(b) and under the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and Exchange Act. Such resolutions shall comply with Law and other orders or awards the conditions of third-party intermediaries with respect to any disputes arising Rule 16b-3 under the CVR Agreement; and to make, execute, acknowledge and deliver all Exchange Act for purposes of establishing such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, exemption from Section 16(b) liability and, in generalaccordance with such conditions, to do any and all things and to take any and all action that the Stockholders’ Representativeshall specify, in its sole and absolute discretionwithout limitation, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.the

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is Each Company Stockholder hereby appointed, authorized and empowered appoints Xxxxxxxx Xxxxxx to be the exclusive representative, agent and appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the holders of Contingent Value Rights, Company Stockholders (with full power of substitutionsubstitution in the premises), to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement with the provisions of this Agreement (Section 1.04 as it relates they relate to the Contingent Value Rights) Company and the CVR AgreementCompany Stockholders generally, and to facilitate such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby including, without limitation, (as it relates i) to review all determinations of the Closing Adjustment and the Accounts Payable Adjustment and, to the Contingent Value Rightsextent deemed appropriate, dispute, question the accuracy of, compromise, settle or otherwise resolve any and all such determinations, (ii) to compromise on their behalf with Acquiror any claims asserted thereunder, (iii) to authorize payments to be made with respect to the Closing Adjustment and thereby. By executing this Agreementthe Accounts Payable Adjustment, the Stockholders’ Representative accepts such appointment, authority (iv) to execute and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions deliver on behalf of the holders Company Stockholders any documents or agreement contemplated by or necessary or desirable in connection with this Purchase Agreement and (v) to take such further actions including coordinating and administering post-closing matters related to the rights and obligations of the Contingent Value Rights: to give and receive notices, communications and consents under Company Stockholders as are authorized in this Purchase Agreement (the above named representative, as it relates to the Contingent Value Rights) and the CVR Agreement on behalf well as any subsequent representative of the holders of Contingent Value Rights; Company Stockholders appointed by the Company Stockholders being referred to negotiateherein as the "Stockholders' Representative"). The Stockholders' Representative shall not be liable to any Company Stockholder, enter into settlements and compromises ofAcquiror, resolve and comply with Law and the Company or their respective Affiliates or any other orders or awards of third-party intermediaries Person with respect to any disputes arising under the CVR Agreement; and action taken or omitted to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that be taken by the Stockholders’ Representative, ' Representative in its sole and absolute discretion, may consider necessary his role as Stockholders' Representative under or proper or convenient in connection with this Purchase Agreement unless such action or to carry omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause part of the Stockholders’ ' Representative. Acquiror shall be entitled to rely on such appointment and treat such Stockholders' Representative to take all actions with respect to as the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date duly appointed attorney-in-fact of this Agreement, including making and obtaining all Regulatory Approvalseach Company Stockholder.

Appointment of Stockholders’ Representative. For purposes By approving this Agreement and the consummation of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate transactions contemplated hereby, and/or participating in the judgment of Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Stockholder shall be deemed to have irrevocably approved the appointment and designation of, and hereby appoints and designates the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) its true and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the lawful exclusive representative, agent and proxy, attorney-in-fact of the holders of Contingent Value Rightsfact, and agent with full power of substitution, substitution to make do any and all decisions things and determinations execute any and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that documents which may be necessary necessary, convenient, or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder and the Escrow Agreement, including (as it relates i) to take all action necessary to consummate the Contingent Value Rights) and thereby. By executing transactions contemplated by this Agreement, or the Stockholders’ Representative accepts such appointmentdefense and/or settlement of any claims for which the Stockholders may be required to indemnify Parent or any other Indemnitee pursuant to Section 9, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: (ii) to give and receive notices, all notices and communications and consents under pursuant to this Agreement (as it relates to the Contingent Value Rights) and the CVR Escrow Agreement and accepting service of process, (iii) giving or agreeing to, on behalf of all the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do Stockholders any and all things consents, waivers and to take any and all action that amendments deemed by the Stockholders’ Representative, in its sole reasonable and absolute good faith discretion, may consider to be necessary or proper appropriate under this Agreement and the Escrow Agreement and the execution or convenient delivery of any documents that may be necessary or appropriate in connection therewith, (iv) receiving payments or distributions under or pursuant to this Agreement and the Escrow Agreement and making disbursements thereof to the Stockholders, as contemplated by this Agreement and the Escrow Agreement, and (v) with respect to any indemnification claims and all other matters arising under this Agreement and the Escrow Agreement, (A) disputing or refraining from disputing, on behalf of each Stockholder relative to carry out any amounts to be received by the activities described in Stockholders under this Section 6.16Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement or the Escrow Agreement, (B) negotiating and compromising, on behalf of each Stockholder any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or the Escrow Agreement, and (C) executing, on behalf of each Stockholder any settlement agreement, release or other document with respect to such dispute or remedy, except in each case except as limited by with respect to a dispute between any Stockholder on the CVR Agreement. The Company shall cause one hand and the Stockholders’ Representative on the other hand, provided that, in each case, the Stockholders’ Representative shall not take any action adverse to take all actions any Stockholder unless such action is also taken proportionately with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.others. 57

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment Xxxx X. Xxxxxx shall, by virtue of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counselMerger, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the holders of Contingent Value Rights, Company Stockholders (with full power of substitutionsubstitution in the premises), to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement with the provisions of this Section 2.05 and the Escrow Agreement (as it relates they relate to the Contingent Value Rights) Company and the CVR AgreementCompany Stockholders generally, and to facilitate such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby including, without limitation, (as it relates i) to review all determinations of the Closing Adjustment and, to the Contingent Value Rightsextent deemed appropriate, dispute, question the accuracy of, compromise, settle or otherwise resolve any and all such determinations, (ii) to compromise on their behalf with Acquiror any claims asserted thereunder, (iii) to authorize payments to be made with respect to the Closing Adjustment, (iv) to execute and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions deliver on behalf of the holders Company Stockholders any documents or agreement contemplated by or necessary or desirable in connection with this Merger Agreement or the Escrow Agreement and (v) to take such further actions including coordinating and administering post-closing matters related to the rights and obligations of the Contingent Value Rights: to give Company Stockholders as are authorized in this Merger Agreement and receive notices, communications and consents under this the Escrow Agreement (the above named representative, as it relates to the Contingent Value Rights) and the CVR Agreement on behalf well as any subsequent representative of the holders Company Stockholders appointed by the Company Stockholders who previously held a majority of Contingent Value Rights; the Company Common Stock being referred to negotiateherein as the "Stockholders' Representative"). The Stockholders' Representative shall not be liable to any Company Stockholder, enter into settlements and compromises ofAcquiror, resolve and comply with Law and the Surviving Corporation or their respective Affiliates or any other orders or awards of third-party intermediaries Person with respect to any disputes arising under the CVR Agreement; and action taken or omitted to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that be taken by the Stockholders’ Representative, ' Representative in its sole and absolute discretion, may consider necessary his role as Stockholders' Representative under or proper or convenient in connection with this Merger Agreement unless such action or to carry omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause part of the Stockholders’ ' Representative. Acquiror, Acquiror Sub and the Surviving Corporation shall be entitled to rely on such appointment and treat such Stockholders' Representative to take all actions with respect as the duly appointed attorney-in-fact of each Company Stockholder. Each Company Stockholder who votes in favor of the Merger pursuant to the Stockholders’ Representative necessary to permit terms hereof, by such vote and without any further action, and each Company Stockholder who receives Merger Consideration in connection with the transactions contemplated hereby to be consummated as promptly as practicable after the date of this AgreementMerger, including making by acceptance thereof and obtaining all Regulatory Approvalswithout any further action, confirms such appointment and authority.

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) The Company and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is Principal Stockholders hereby appointed, authorized and empowered to be the exclusive representative, appoint Xxxxx X. XxxXxxxx as agent and the attorney-in-fact of the holders Principal Stockholders, with full authority to act, for and on behalf of Contingent Value Rights, any or all of Principal Stockholders (in each case with full power of substitutionsubstitution in the premises), to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be with such matters as are reasonably necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate for the consummation of the transactions contemplated hereby hereby, including, without limitation, (as it relates a) to receive notice of, to defend and to compromise on their behalf with Parent any claims asserted under this Agreement or the Escrow Agreement, (b) to execute and deliver on behalf of the Principal Stockholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement or the Escrow Agreement, (c) to engage counsel, accountants or other representatives in connection with the foregoing matters and (d) to take such further actions, including coordinating and administering the pre-Closing and the post-Closing matters related to the Contingent Value Rights) rights and thereby. By executing obligations of the Principal Stockholders under this Agreement or the Escrow Agreement, to send and receive notices on behalf of the Principal Stockholders under this Agreement or the Escrow Agreement, and to provide any consents on behalf of the Principal Stockholders as are authorized in or contemplated by this Agreement or the Escrow Agreement (the above named representative, as well as any subsequent representative the Principal Stockholders who hold at least a majority of the Merger Consideration may appoint from time to time to replace Xxxxx X. XxxXxxxx being referred to herein as the “Stockholders’ Representative accepts such appointment, authority and powerRepresentative”). Without limiting the generality of the foregoing, the The Stockholders’ Representative shall have the full power and authority to take any represent all of the following actions on behalf of the holders of the Contingent Value Rights: Principal Stockholders and their successors with respect to give and receive notices, communications and consents all matters arising under this Agreement (as it relates to or the Contingent Value Rights) Escrow Agreement and all actions taken by the CVR Agreement on behalf Stockholders’ Representative hereunder and thereunder shall be binding upon all of the holders Principal Stockholders and their successors as if expressly confirmed and ratified in writing by each of Contingent Value Rights; them, and no Principal Stockholder shall have the right to negotiateobject, enter into settlements and compromises ofdissent, resolve and comply with Law and protest or otherwise contest any such actions. The Stockholders’ Representative shall not be liable to any Principal Stockholder, Parent, the Surviving Corporation or their respective Affiliates or any other orders or awards of third-party intermediaries Person with respect to any disputes arising action taken or omitted to be taken by the Stockholders’ Representative in his role as Stockholders’ Representative under or in connection with this Agreement (all of which actions and omissions shall be legally binding upon each Principal Stockholder), unless such action or omission constitutes fraud, gross negligence, willful misconduct or bad faith on the CVR part of the Stockholders’ Representative. Parent, Merger Co. and the Surviving Corporation shall be entitled to rely on such appointment and treat such Stockholders’ Representative as the duly appointed attorney-in-fact of each Principal Stockholder for all purposes of this Agreement; . Each Principal Stockholder who executes this Agreement, by such execution and without any further action, confirms such appointment and authority. Xxxxxx Godward LLP shall serve as legal counsel to make, execute, acknowledge the Stockholders’ Representative until such time as the Principal Stockholders who hold at least a majority of the Merger Consideration appoint a successor to replace Xxxxxx Godward LLP. All fees and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that expenses of the Stockholders’ Representative, in its sole and absolute discretionincluding any legal fees, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited shall be paid by the CVR Agreement. The Company shall cause the Principal Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect to The Stockholders hereby appoint the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Stockholder Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) as, and the CVR Agreement (including engaging counselStockholder Representative hereby agrees to serve as, accountants or other advisors each Stockholder’s legal representative and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorneyAttorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, Fact to do any and all things and to take any execute all documents and all action that the Stockholders’ Representativepapers, in its sole each Stockholder’s name, place and absolute discretionstead, may consider necessary or proper or convenient in any way such Stockholder could do if personally present, in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit Agreement and the transactions contemplated hereby hereby, including, without limitation, to be consummated as promptly as practicable after (i) amend, cancel or extend, or waive the date terms of this Agreement, the Voting Agreement or any other ancillary documents or agreements prepared in connection with this Agreement, (ii) provide the notices of dispute and adjustments to the consideration pursuant to Section 2.3(c), (iii) accept and deliver shares or cash in the amounts due to each Stockholder, on behalf of such Stockholders, (iv) act on behalf of each Stockholder with respect to claims (including the settlement thereof) made by an Indemnified Party (as defined in Section 9.1) for indemnification pursuant to Article IX and with respect to any actions to be taken by the Stockholders pursuant to the terms of the Voting Agreement, (v) accept, on behalf of each Stockholder, all notices required to be delivered to such Stockholder under this Agreement, and (vi) execute and deliver the Stock Pledge Agreement (as defined below) on behalf of each Stockholder. Each Stockholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Representative under this Agreement or the Voting Agreement. Each Stockholder shall be bound by all actions taken by the Stockholder Representative in his capacity thereof. Parent and obtaining all Regulatory ApprovalsSub shall be entitled to rely, as being binding upon each Stockholder, any document or other paper believed by it to be genuine and correct and to have been signed or sent by the Stockholder Representative, and neither Parent nor Sub shall be liable to any Stockholder for any action taken or omitted to be taken by it in such reliance.

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect this Agreement, the stockholders of Demeter, without any further action on the part of any such stockholder, shall be deemed to have consented to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in appointment of Xxx Xxxxxxx as the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent representative and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions for and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for such stockholders (the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement"Stockholders' Representative"), and to facilitate the consummation taking by the Stockholders' Representative of any and all actions and the transactions contemplated hereby (as it relates making of any decisions required or permitted to be taken by him under this Agreement or the Contingent Value Rights) and thereby. By executing this Escrow Agreement, the Stockholders’ Representative accepts such appointmentincluding, authority and power. Without limiting the generality of the foregoingwithout limitation, the Stockholders’ Representative shall have exercise of the power to take any (i) execute the Escrow Agreement, (ii) authorize delivery to Finisar of the following actions on behalf Escrow Shares in satisfaction of the holders of the Contingent Value Rights: to give and receive noticesIndemnification Claims, communications and consents under this Agreement (as it relates to the Contingent Value Rightsiii) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to agree to, negotiate, enter into settlements and compromises of, resolve of and comply with Law orders of courts and other orders or awards of third-party intermediaries arbitrators with respect to such Indemnification Claims, (iv) resolve any Indemnification Claims and (v) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of the foregoing. Accordingly, the Stockholders' Representative has unlimited authority and power to act on behalf of each stockholder with respect to the disposition, settlement or other handling of all Indemnification Claims against the Escrow. With respect to any interest in the Escrow, the stockholders of Demeter will be bound by all actions taken by the Stockholders' Representative in connection with all Indemnification Claims, and Finisar shall be entitled to rely on any action or decision of the Stockholders' Representative. The Stockholders' Representative will incur no liability with respect to any disputes action taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct or bad faith. In all questions arising under this Agreement or the CVR Escrow Agreement; , the Stockholders' Representative may rely on the advice of counsel, and the Stockholders' Representative will not be liable to makeanyone for anything done, executeomitted or suffered in good faith by the Stockholders' Representative based on such advice. Except as expressly provided herein, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and the Stockholders' Representative will not be required to take any and all action that involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. At any time during the term of the Escrow Agreement, holders of a majority of the Escrow Shares subject to Indemnification Claims under this Article IX may, by written consent, appoint a new representative as the Stockholders’ Representative, in its sole ' Representative by sending notice and absolute discretion, may consider necessary or proper or convenient in connection with or a copy of the written consent appointing such new representative signed by holders of a majority of the Escrow Shares to carry out Finisar and the activities described in this Section 6.16, in each case except as limited by Escrow Agent. Such appointment will be effective upon the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after later of the date of this Agreement, including making indicated in the consent or the date such consent is received by Finisar and obtaining all Regulatory Approvalsthe Escrow Agent.

Appointment of Stockholders’ Representative. For purposes (a) The Stockholders hereby irrevocably appoint Xxxxx Xxxxxx as their attorney-in-fact and representative (the “Stockholders’ Representative”), with full power and authority to take, for and on behalf of (i) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all of the Stockholders, all actions necessary, permitted or advisable to effectuate and consummate the Merger and any and all other transactions contemplated by this Agreement and the Transaction Documents (as hereinafter defined) (including the Escrow Agreement), including to undertake the defense or settlement of any Claims for which any Stockholder may be required to indemnify the GlobalSCAPE Indemnity Group (as hereinafter defined), or be indemnified by GlobalSCAPE hereunder, and to take all such other actions provided in this Agreement or in any Transaction Document to be taken by the Stockholders’ Representative (and any other actions reasonably related or ancillary thereto), including the power to execute and deliver the Escrow Agreement and such other documents as may be necessary or appropriate for the foregoing purposes. By his execution of this Agreement, Xxxxx Xxxxxx hereby accepts such appointment and agrees to act as the Stockholders’ Representative hereunder. Simultaneously with the execution of this Agreement, the Stockholders and the Stockholders’ Representative are entering into a Stockholders’ Representative Agreement (the “Stockholders’ Representative Agreement”). The provisions of this Section 1.17 shall apply in addition to and not in lieu of the judgment provisions of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.

Appointment of Stockholders’ Representative. For purposes of (i) negotiating and settling matters with respect this Agreement, the InterSAN Stockholders hereby consent to the Contingent Value Rights appointment of Nxx Xxxxxxx as the representative and attorney-in-fact for and on behalf of the InterSAN Stockholders (ii) the “Stockholders’ Representative”), and to the taking by the Stockholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement or the Escrow Agreement, including, without limitation, the exercise of the power to (i) execute the Escrow Agreement on behalf of the InterSAN Stockholders, (ii) authorize delivery to Finisar of Escrow Shares in satisfaction of Indemnification Claims, (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (iv) resolve any Indemnification Claims and (v) take all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf for the accomplishment of the holders foregoing and all of Contingent Value Rights in connection with the other terms, conditions and limitations of this Agreement (as it relates to Contingent Value Rights) and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Escrow Agreement). Accordingly, the Stockholders’ Representative is hereby appointed, authorized has unlimited authority and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of each InterSAN Shareholder with respect to the Escrow Agreement and as agent for the holders disposition, settlement or other handling of all Indemnification Claims. Each InterSAN Stockholder will be bound by all actions taken by the Stockholders’ Representative in connection with all Indemnification Claims, and Finisar shall be entitled to rely on any action or decision of the Contingent Value Rights at Stockholders’ Representative or taken by any time person that Finisar reasonably believes to be authorized to act on behalf of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability with respect to any action taken or suffered by it in connection withreliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and that may be necessary to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or appropriate to accomplish the intent and implement the provisions of inaction, except his own willful misconduct or bad faith. In all questions arising under this Agreement (as it relates to or the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Escrow Agreement, the Stockholders’ Representative accepts may rely on the advice of counsel, and the Stockholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Stockholders’ Representative based on such appointment, authority and poweradvice. Without limiting the generality of the foregoingExcept as expressly provided herein, the Stockholders’ Representative shall have the power will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. The expenses of the following actions on behalf Stockholders’ Representative shall be paid from the Escrow Shares to the extent any Escrow Shares are available after payment of all Finisar Losses under this Article IX. At any time during the term of the Escrow Agreement, holders of a majority of the Contingent Value Rights: Escrow Shares then held in Escrow may, by written consent, appoint a new representative as the Stockholders’ Representative by sending notice and a copy of the written consent appointing such new representative signed by holders of a majority of the Escrow Shares to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) Finisar and the CVR Agreement on behalf Escrow Agent. Such appointment will be effective upon the later of the holders date indicated in the consent or the date such consent is received by Finisar and the Escrow Agent. The Stockholders’ Representative may resign at any time. Upon the resignation of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretiona successor, may consider necessary or proper or convenient in connection with or to carry out who shall be bound by all of the activities described in terms of this Section 6.169.6, in each case except as limited by shall be named pursuant to Section 11 of the CVR Escrow Agreement. The Company shall cause the Stockholders’ Representative to take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.

Appointment of Stockholders’ Representative. For Subject to the terms and conditions set forth in this Agreement, for purposes of (i) negotiating and settling matters with respect to the Contingent Value Rights (including, but not limited to, effectuating the (x) sale of the Montreal Properties or the Montreal Interests, as applicable, and (y) satisfaction and discharge of the Montreal Guaranty), and (ii) taking any and all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (as it relates to Contingent Value Rights) ), the Montreal Escrow Agreement and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rights, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) ), the Montreal Escrow Agreement and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby and thereby (in each instance, as it relates to the Contingent Value Rights) and thereby). By executing this Agreement, the Stockholders’ Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, subject to the terms and conditions set forth in this Agreement, the Stockholders’ Representative shall have the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: (i) to give and receive notices, communications and consents under this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; (ii) to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and (iii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, ; and (iv) to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.165.13, in each case except as limited by the CVR Agreement. The Company shall cause Prior to the Effective Time, the Stockholders’ Representative to shall take all actions with respect to the Stockholders’ Representative necessary to permit the transactions contemplated hereby Transactions to be consummated as promptly as practicable after the date of this Agreement, including making and obtaining all Regulatory Approvals.

Appointment of Stockholders’ Representative. For purposes of (ia) negotiating and settling matters with respect to the Contingent Value Rights and (ii) taking any and all actions necessary or appropriate in the judgment Each of the Stockholders’ Representative on behalf of the holders of Contingent Value Rights in connection with this Agreement (Stockholders hereby appoints Xxxx Xxxxxxx as it relates to Contingent Value Rights) its exclusive representative and the CVR Agreement (including engaging counsel, accountants or other advisors and executing any agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the foregoing, in each case to the extent permitted by the CVR Agreement), the Stockholders’ Representative is hereby appointed, authorized and empowered to be the exclusive representative, agent and attorney-in-fact of the holders of Contingent Value Rightswith full power and authority to act, with including full power of substitution, in his or its name and on his or its behalf with respect to make all decisions matters arising from or in any way relating to all matters and determinations and affairs delegated by such Stockholder to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consent on behalf of and as agent for the holders of the Contingent Value Rights at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of this Agreement (as it relates to the Contingent Value Rights) and the CVR Agreement, and to facilitate the consummation of the transactions contemplated hereby (as it relates to the Contingent Value Rights) and thereby. By executing this Agreement, the Stockholders’ Representative under the terms of this Agreement and the Other Agreements. This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Stockholder or by operation of law, whether by the death or incapacity of any Stockholder that is an individual, termination of any trust or estate, the dissolution, liquidation or bankruptcy or any corporation, partnership or other entity or the occurrence of any other event, and any action taken by the Stockholders’ Representative shall be as valid as if such death, incapacity, termination, dissolution, liquidation, bankruptcy or other event had not occurred, regardless of whether or not the Stockholders’ Representative shall have received any notice thereof. The Stockholders’ Representative hereby accepts such appointment, authority appointment and poweragrees to perform its duties with the same degree of care as it dedicates to its own personal affairs. Without limiting the generality In consideration for its performance of the foregoingits duties hereunder, the Stockholders’ Representative shall have be paid a cash fee at Closing in the power to take any of the following actions on behalf of the holders of the Contingent Value Rights: to give and receive notices, communications and consents under this Agreement (aggregate amount as it relates to the Contingent Value Rights) and the CVR Agreement on behalf of the holders of Contingent Value Rights; to negotiate, enter into settlements and compromises of, resolve and comply with Law and other orders or awards of third-party intermediaries with respect to any disputes arising under the CVR Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 6.16, in each case except as limited by the CVR Agreement. The Company shall cause agreed between the Stockholders’ Representative and the Stockholders, which amount shall be paid by each of the Stockholders in accordance with his or its Pro Rata Portion. The Stockholders shall have the right to take all actions with respect provide written instructions to the Stockholders’ Representative necessary with respect to permit actions involving individual Stockholder discretion or in cases of dispute; provided, however, that the transactions contemplated hereby Stockholders’ Representative shall not be required to be consummated as promptly as practicable after take any action or respond to any instruction that is contrary to the date terms of this Agreement or any Other Agreement, including making and obtaining all Regulatory Approvalsoutside the scope of its appointment, or in conflict with any other obligations of, or instructions received by, the Stockholders’ Representative. Each of the Stockholders agrees, severally but not jointly, to indemnify the Stockholders’ Representative for any loss, liability or damage it may incur as a result of performing its duties under this appointment.